BILL NUMBER: AB 519 CHAPTERED 10/10/99 CHAPTER 964 FILED WITH SECRETARY OF STATE OCTOBER 10, 1999 APPROVED BY GOVERNOR OCTOBER 10, 1999 PASSED THE ASSEMBLY SEPTEMBER 10, 1999 PASSED THE SENATE SEPTEMBER 9, 1999 AMENDED IN SENATE SEPTEMBER 9, 1999 AMENDED IN SENATE AUGUST 23, 1999 AMENDED IN SENATE JUNE 10, 1999 AMENDED IN ASSEMBLY MAY 10, 1999 AMENDED IN ASSEMBLY APRIL 12, 1999 INTRODUCED BY Assembly Member Aroner FEBRUARY 18, 1999 An act to amend Sections 51.9 and 52 of the Civil Code, relating to sexual harassment. LEGISLATIVE COUNSEL'S DIGEST AB 519, Aroner. Sexual harassment. (1) Existing law provides that a person is liable in a cause of action for sexual harassment when the plaintiff proves, among other things, that the defendant has made sexual advances, solicitations, sexual requests, or demands for sexual compliance by the plaintiff that were unwelcome and persistent and severe, continuing after a request by the plaintiff to stop. This bill would revise that cause of action by extending it to apply to verbal, visual, or physical conduct of a sexual nature or hostile nature based on gender, requiring the conduct to be pervasive rather than persistent, deleting the requirement that the conduct continue after a request by the plaintiff to stop, and specifying that the cause of action applies to an injury involving emotional distress or violation of a statutory or constitutional right. The bill would also delete the requirement that the complaint and answer be verified and would specify that the above definitions and standards only apply to a cause of action brought under this provision. (2) Existing law provides that whoever denies the right to be free from violence or intimidation because of their race, color, religion, ancestry, national origin, sex, sexual orientation, age, disability, position in a labor dispute, as specified, or similar characteristics, or who aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right, exemplary damages, and attorney's fees as may be determined by the court. This bill would extend these provisions to persons having a cause of action for sexual harassment discussed above. The bill would also incorporate additional changes to Section 52 of the Civil Code proposed by AB 1268, contingent upon its prior enactment. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 51.9 of the Civil Code is amended to read: 51.9. (a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements: (1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons: (A) Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code. (B) Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer. (C) Executor, trustee, or administrator. (D) Landlord or property manager. (E) Teacher. (F) A relationship that is substantially similar to any of the above. (2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. (3) There is an inability by the plaintiff to easily terminate the relationship. (4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2). (b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52. (c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law. (d) The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section. SEC. 2. Section 52 of the Civil Code is amended to read: 52. (a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 or 51.5, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney' s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51 or 51.5. (b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7. (3) Attorney's fees as may be determined by the court. (c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights hereby secured, and that conduct is of that nature and is intended to deny the full exercise of the rights herein described, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: (1) The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved. (2) The facts pertaining to the conduct. (3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to insure the full enjoyment of the rights herein described. (d) Whenever an action has been commenced in any court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any district attorney or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General or any district attorney or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action. (e) Actions under this section shall be independent of any other remedies or procedures that may be available to an aggrieved party. (f) Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code. (g) Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor shall anything in this section be construed to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws. (h) For the purposes of this section, "actual damages" means special and general damages. This subdivision is declaratory of existing law. SEC. 3. Section 52 of the Civil Code is amended to read: 52. (a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 or 51.5, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney' s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51 or 51.5. (b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages, if the defendant is guilty of fraud, malice, or oppression. (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7. (3) Attorney's fees as may be determined by the court. (c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights hereby secured, and that conduct is of that nature and is intended to deny the full exercise of the rights herein described, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: (1) The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved. (2) The facts pertaining to the conduct. (3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to insure the full enjoyment of the rights herein described. (d) Whenever an action has been commenced in any court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any district attorney or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General or any district attorney or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action. (e) Actions under this section shall be independent of any other remedies or procedures that may be available to an aggrieved party. (f) Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code. (g) Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor shall anything in this section be construed to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws. (h) For the purposes of this section, "actual damages" means special and general damages. This subdivision is declaratory of existing law. SEC. 4. Section 3 of this bill incorporates amendments to Section 52 of the Civil Code proposed by both this bill and AB 1268. It shall only become operative if (1) both bills are enacted and become effective on January 1, 2000, (2) each bill amends Section 52 of the Civil Code, and (3) this bill is enacted after AB 1268, in which case Section 2 of this bill shall not become operative.